The Special Problem of Banks and Crime
52 Pages Posted: 5 Jul 2013 Last revised: 20 Aug 2014
Date Written: August 9, 2013
Federal prosecutors face increasing criticism for their failure to indict large banks and bankers for serious criminal conduct, including allowing violent drug cartels to launder hundreds of millions of dollars, willfully conducting business with rogue nations and terrorists, and manipulating the LIBOR to defraud investors. This Essay argues that the non-prosecution of banks is often justified by proper consideration of externalities and that the non-prosecution of bankers is often explained by lack of evidence or the difficulty of white-collar prosecutions generally. Nevertheless, the result is that extremely serious criminal conduct is penalized by mere fines and negotiated terms of probation, and this introduces deterrence and expressive costs to the legal system. These costs are significant and ought to be addressed, but the criminal law may not be the most effective tool for confronting criminal conduct by banks and bankers; rather, powerful regulatory tools already exist that could resolve the deterrent and expressive shortcomings of the criminal law in this area. Presently, the regulators are not using these tools; they ought to.
Keywords: Banks and Banking, Criminal Law, Corporate Liability, Financial Institutions, Too Big to Fail, Too Big to Jail
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